Danny O’BRIEN (Gippsland South) (11:20): I am pleased to rise to follow the member for Wendouree on the Bail Amendment Bill 2023 and the member for Malvern, who has given a very detailed and comprehensive summation of this legislation and also of the opposition’s position on it. As the member for Malvern indicated, we will not be opposing this bill, but we do have some amendments that we think are crucial to improving the bill, because that is what this is about. This is really about an ongoing process of getting things right, and it is clear to all and sundry that governments do not always get justice and bail legislation right the first time. In fact it is an evolving process that goes on.

We see the background to this piece of legislation. Of course there were changes to the Bail Act 1977 under the former coalition government in 2013 and then further changes in 2017 after the Bourke Street tragedy and the fact that the accused then, James Gargasoulas, was on bail at the time of that horrible event. This is about getting the balance right. It is about getting the balance right to ensure that people who need not be in custody are not in custody because of the bail laws, but also it is about the rights of the community and victims of crime and making sure that we protect our community from people who have done the wrong thing and deserve to have their liberty constrained. I have enormous sympathy for the family and friends of Veronica Nelson, whose case has in large part prompted these changes – and the coroners report that ensued – and there are many other cases too.

It is clear too, and the opposition accepts, that the changes that were brought in in 2017 have resulted in far too many people being remanded when they did not need to be, in some cases for periods longer than they would have received or did in fact receive in terms of sentence. So we acknowledge and accept what the government is trying to do to correct the balance to come back to a more balanced scheme, because we do not believe that people who are charged with minor offences should be unnecessarily remanded in custody. We have seen that through our justice system. We have seen the statistics that indicate that whilst the overall prison rate is going down, the rate of those on remand has dramatically increased over the last few years. That has, as the member for Wendouree indicated, impacted disproportionately on some sections of the community, particularly those of Aboriginal descent and women as well.

I also want to talk a little bit about the victims, and I want to give an example for the chamber to understand the need to get the balance right on behalf of community safety. I will talk about a case study that comes from a member of my community, someone who I know. I am also conscious that there is ongoing court action in relation to this, so I will not use any names other than to say Jim from my electorate. Jim is 77 years old. On or about New Year’s Day this year in the city he was picking up a friend from an address and was putting their bag in the boot of his car when he was assaulted. He was punched by a man who literally walked past. He punched Jim twice and knocked him to the ground. In doing so, this individual broke Jim’s cheekbone in two places and shattered an eye socket. This was a completely unprovoked attack. Jim did not even see it coming. There was a thump on the side of his car, and a second later he felt the first blow. This person did not speak to Jim. He did not look him in the eye. He did not say anything after the assault. The last thing Jim saw as he looked up from the ground was three people walking away. They did not look back; they did not say anything.

Jim, as I said, has suffered serious facial injuries from that, and he told me recently that his whole lifestyle has been changed as a result of this assault. He is still very adversely affected, as is his wife. He was in hospital for several days, and to this day – this happened, as I said, in January this year – he is still doing physical rehab and very clearly suffering the mental scars of that assault.

The reason I give this example is – and again I cannot verify this, which is why I am not using any names other than the facts that have been put to me – it is understood that this person had been bailed a number of times previously. I am not sure whether the person was on bail at the time. The person was also a child in the eyes of the law. As the member for Malvern indicated though, a child can be anyone under 18, and indeed I think this person was 17¾ years of age at the time. The fact that allegedly this person was on bail at the time perhaps makes it not surprising that, when he was to appear in court just recently, he did not show up – and I understand a warrant is now out for this person’s arrest.

I tell this story because I think it is important that the chamber, the Parliament and indeed the government understand that there are things that happen when people are on bail that should not be allowed to happen and that those perpetrators should rightly be punished not only for their action in a criminal sense in the first instance but for breaching the privilege that comes with maintaining their freedom after having been charged with an offence from the start. That is a significant issue that the community expects us to get right, and I am not sure whether this necessarily does, particularly in these circumstances where this individual will be treated as a child and certainly was in the eyes of the law. But this is a very serious event that happened to a really good person, a good community person – which of course is irrelevant. Whether they are a good community person or not, they are a victim of crime – a crime allegedly committed by someone who was on bail at the time – and that is something that we need to understand.

So it is that I support the amendments moved by the member for Malvern, in particular retaining the offence of committing an indictable offence whilst on bail. That offence was introduced in the 2013 changes by the then coalition government, and in effect it says that if you are charged with this, there will be an automatic step-up in the test for bail on a person charged with that offence. In addition, and this perhaps goes to the sort of circumstance I just described with respect to Jim, it is to add eight serious offences to the list that require a compelling reason bail test for children. The member for Malvern has outlined those, but we believe that in circumstances of charges of rape, rape by compelling sexual penetration, sexual penetration of a child under the age of 12, aggravated home invasion, aggravated carjacking, aggravated burglary, armed robbery and causing serious injury intentionally in circumstances of gross violence – and that may well be the sort of offence that relates to the story I just told – there should be a higher threshold for bail. As the member for Malvern said, we are not talking necessarily about eight-year-olds here. We can be talking about virtually grown men and women who in the eyes of the law of course are still children. But for those very serious offences we do need to ensure that there is a higher test for bail, so I certainly support the member for Malvern’s amendment with respect to that.

Finally – this probably gets me back to where I started – our third amendment is to institute in the legislation a compulsory two-year review of these changes, and I think that is appropriate. As I said, this is about getting the balance right. We have seen a number of changes to bail over the past decade, and the acknowledgement by the government and by us in the opposition – I think by the whole chamber – today is that we did not get it right in 2017. I think we can be fairly sure that we are not getting it 100 per cent right today, partly because we may not have got the wording right or we may not have got the balance right but also because circumstances change. Things change. Community perceptions change. Crime changes. So the least the government could do is to accept that particular amendment and ensure that in two years time, after there has been some interpretation by the courts and there has been some experience of these changes, it be reviewed and that within six months that review be provided to the Parliament. I think we must limit people in custody unnecessarily. But we also need to get that balance right on behalf of the community and particularly of victims of crime, and I look forward to this bill proceeding in the house.

Stay up-to-date

Subscribe to Danny’s regular newsletter to stay informed about issues relating to Gippsland South.